United States District Court, D. Oregon
A. Russo United States Magistrate Judge.
an inmate currently housed at the Multnomah County Inverness
Jail, brings this civil rights action pursuant to 42 U.S.C.
§ 1983. On October 5, 2018, Chief District Judge Michael
W. Mosman issued an Order (ECF No. 5) dismissing
plaintiff's Complaint. The Order advised plaintiff of the
deficiencies of the Complaint and granted plaintiff leave to
file an Amended Complaint curing those deficiencies. On
October 22, 2018, plaintiff filed a document entitled
"Amended Complaint" (ECF No. 7). However, the
document filed by plaintiff is not in the form of a
Complaint; instead, plaintiff asks the Court to subpoena
institutional records of his grievances, and requests that
the Court appoint counsel. As such, the Court construes the
document as a Motion instead of an Amended Complaint and, so
construed, the Court DENIES plaintiff's Motion.
asks the Court to issue a subpoena to obtain grievances and
replies pertaining to plaintiff's mental health treatment
while he was incarcerated at the Multnomah County Detention
Center ("MCDC"). To the extent plaintiff seeks to
subpoena records, the Court notes that pursuant to Federal
Rules of Civil Procedure 34(c) and 45(a)(D), the parties to a
case in this Court may obtain discovery from non-parties
through a subpoena compelling the production of documents and
tangible things, or permitting an inspection. Rule 45(a)(D)
does not, however, apply to discovery sought from a party.
See Wirtz v. Local Union 169, Intern. Hod Carriers'
Bldg. and Common Laborers' Union of America,
AFL-CIO, 37 F.R.D. 349, 351 (D. Nev. 1965) (subpoena
duces tecum is not intended as substitute for request to
produce where subpoena requires production of documents under
control of party as distinguished from independent witness).
Here, should plaintiff file an Amended Complaint naming as
defendant(s) the individual(s) who allegedly denied him
mental health care at MCDC, he will have options other than a
subpoena for obtaining the records sought from the
defendant(s). See Fed.R.Civ.P. 26 through 36.
Accordingly, in the absence of showing that plaintiff has
attempted and been unable to obtain the records sought
through a discovery request served on defendant(s) after he
files his Amended Complaint, the Court denies plaintiff's
motion for subpoenas.
extent plaintiff seeks appointment of counsel, generally,
there is no constitutional right to counsel in a civil case.
United States v. 30.64 Acres of Land, 795 F.2d 796,
801 (9th Cir. 1986). However, pursuant to 28 U.S.C. §
1915(e), this Court has discretion to request volunteer
counsel for indigent plaintiffs in exceptional circumstances.
Agyeman v. Corrections Corporation of America, 390
F.3d 1101, 1103 (9th Cir. 2004) (citing Franklin v.
Murphy, 745 F.2d 1221, 1236 (9th Cir. 1984)). While this
Court may request volunteer counsel in exceptional cases, it
has no power to make a mandatory appointment. Mallard v.
U.S. Dist. Court of Iowa, 490 U.S. 296, 301-08 (1989).
order to determine whether exceptional circumstances exist,
this Court evaluates “the likelihood of the
plaintiff's success on the merits and an evaluation of
the plaintiff's ability to articulate his claims
‘in light of the complexity of the legal issues
involved.'” Agyeman, 390 F.3d at 1103
(quoting Wilborn v. Escalderon, 789 F.2d 1328, 1331
(9th Cir. 1986)). However, “[n]either of these factors
is dispositive and both must be viewed together before
reaching a decision on request of counsel under [former]
section 1915(d).” Wilborn, 789 F.2d at 1331;
Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir.
case involves allegations of denial of mental health care;
the facts and legal issues involved are not of substantial
complexity to necessitate appointment of counsel, and
plaintiff has demonstrated an ability to articulate his
claims. Accordingly, at least at this stage of the
proceeding, there are no exceptional circumstances that
require the appointment of counsel, and the Court denies
Court DENIES plaintiff's motion for a subpoena and motion
for appointment of counsel (ECF No. 7). Plaintiff has an
additional 30 days from the date of this Order to file an
Amended Complaint curing the deficiencies noted in Judge
Mosman's Order. Plaintiff is advised that failure to file
an Amended Complaint within the time provided by this Order
will result in the dismissal of this ...